Krueger v. Lynch

48 N.W.2d 266, 242 Iowa 772, 1951 Iowa Sup. LEXIS 374

• Court: Supreme Court of Iowa
• Decided: June 5, 1951
• Docket: 47847
• Status: Published

Opinions

Thompson, J.

The original ffotice herein was served by the sheriff of Polk County upon the defendant on April 12, 1950. No copy of the petition was attached, and the petition was not filed until April 13, 1950. The notice was in this form: ►

“You are hereby notified that the petition of the plaintiff in the above entitled action will be on file April 15, 1950, in the office of the clerk of the district court of Iowa, in and for Polk County, claiming of you the sum of $6281.60, as the result of an assault committed upon the body of the plaintiff*on or about April 25, 1948; said assault causing this plaintiff to be hospitalized for a period of more than three months, to expend the sum of $56.60 for hospital expenses, to expend the sum of $150.00 for medical expenses, to be away from gainful employment for a period of over three months, all of which resulted in great pain and1 suffering to this plaintiff, and has caused permanent injuries to this plaintiff. You' are further notified to appear before said court at Des Moines, in Polls County, Iowa, within 20 days after the service of this notice upon you, and that unless you so appear, your default will be entered and judgment or decree rendered against you for the relief .demanded in the petition.” (Italics supplied.)

There was. also printed in the notice, and upon its face, the following: “Note : If petition is neither filed nor copy attached, appearance date must be 30 days.”

The special appearance was bottomed upon the claim that the notice as served failed to comply with the requirements of rule 50, R. C. P., which specifies what the contents of an original notice shall be, and rule 53, which says when the defendant shall be required to appear under various conditions, including the situation when the petition is- not on file at the time of service and a copy is not attached to- the notice. The trial court upheld this contention, ruled that the notice was void, and quashed the service.

In the background of this appeal is the question of the statute of limitations; but- it is of no importance so far as the determination of the legal issues involved here is concerned and will not be considered or referred to further.

I. We begin With a consideration of the authorities bearing upon the question of whether the notice was so defective that it must be "considered as no notice, or whether it was a mere irregularity insufficient to support a special appearance, or whether it was in fact no irregularity at all. We set out at this point Rules of Civil Procedure Nos. 50 and 53. Rule 50 says:

“Contents of original notice. The original notice shall be directed to the defendant, and signed by plaintiff or his attorney with the signer’s 'address. It shall name the plaintiff, the court, and the city or town, and county where "the court convenes. It shall state either that the petition" is on file in "the office of the clerk of the court where the action is brought, or that it will be so- filed by a stated date, which must not be more than ten days after service. It shall notify defendant to appear before said court within the specified number of days after service required by rule 53 or rule 54, and that unless he so appears, his default will be entered and judgment or decree rendered against him for the relief demanded in the petition. A copy of the petition maybe attached; but if it is not or if the service is by publication, the notice shall contain a general statement of the cause or causes of action and the relief demanded, and, if for money, the amount thereof.”

Rule 53 follows:

“Time for appearance. A defendant served by publication only, must appear on or before the date fixed in the notice as published, which date shall not be less than twenty days after the day of last publication. If served in any other manner, the defendant shall appear within twenty days after the day the original notice is served on him in all cases where:

“(a) A copy of the petition is attached to the original notice; or

“(b) The petition is on file when the notice is served, and the notice so states.

“In all other cases the defendant shall appear within thirty days after, the day such notice is served. Unless he so appears, he will be in default; but if he does appear, he shall have time to move or plead as provided in rule 85.”

The appellee says that rule 50 requires that he be advised to appear before the court within the number of days specified in rule 53; that he was entitled to be notified that he had thirty days, and since he was in fact required to appear within twenty days the notice was entirely void. He cites Pendy v. Cole, 211 Iowa 199, 233 N.W. 47; Fernekes & Bros. v. Case, 75 Iowa 152, 39 N.W. 238; Swan v. McGowan, 212 Iowa 631, 231 N.W. 440; and Union Savings Bk. & Tr. Co. v. Carter, 214 Iowa 1131, 243 N.W. 523.

The Swan case is of no aid to defendant. It holds only that it was not necessary to name the actual appearance date if the defendant was notified to appear on or before the second day of the next (properly designated) term. The other three eases last-cited turn upon the fact that an erroneous date was given for the commencement of the term at which the defendant was required to appear. Other cases, such as Boals v. Shules, 29 Iowa 507, might be cited to the same effect. The reason for the rule is pointed out in Pendy v. Cole, supra, at page 201 of 211 Iowa, where it is said:

•“But the alleged notice in this case purported to fix the date of the term as of a certain mistaken date. The incorporation of such mistaken date was necessarily misleading. In such a case we have held repeatedly that the mistake is fatal to the validity of the notice.” (Italics supplied.)

There are other Iowa cases in which a defective notice has been held void. In Kitsmiller v. Kitchen, 24 Iowa 163; Decatur County v. Clements, 18 Iowa 536; Van Vark v. Van Dam, 14 Iowa 232; and Des Moines Branch of the State Bank v. Van, 12 Iowa 523, the notice failed to state the term or the time of its commencement, merely referring to the next term of the court. In other cases, notices which gave a return date already past, or which were unsigned, have been held void. These holdings approach the question involved here but do not reach it.

If the notice involved in this case is to be held so defective as to be void and therefore to give no jurisdiction over the defendant, it must be because it-required him to- appear within twenty days, when under rule 53 he was entitled to thirty days. He was not misled by an incorrect date for the commencement of a term of-court, nor did any of the other defects pointed out in the Iowa cases above referred to appear. There is no Iowa authority, apart from the statute and case which will be considered in Division. II hereof, which reaches this situation. But it has been before the courts of other jurisdictions, and they have upheld the validity of the service. In United Order of Good Samaritans v. Brooks, 168 Ark. 570, 571, 270 S.W. 955, 956, the Arkansas Supreme Court had an identical situation before it. A statute of that state provided for the method of service of process upon a fraternal benefit society, such as the appellant. The material part is set out: “ ‘No such service shall be valid or binding against any such-society when it is required thereunder to file its answer, pleading or defense in less than'thirty days from the date of mailing the copy of such service to such society.’ ’’ ' :

The notice served upon the company required it to appear within “twenty days from the service of the summons.” It did not appear, and after thirty'days judgment was rendered against it. Thereupon it appeared and asked that the judgment be set aside and the service quashed. This the Arkansas court refused to do, saying: ......

“We think there was no violation of this statute in the rendition of the judgment appealed from. The recitals of the summons were not effective, to abridge the length of time given to plead, but it could and did apprise the defendant of the pendency of the action, and could not be ignored because of the erroneous 'recital that the allegations of the complaint would be taken as confessed after twenty days. The law gave the defendant thirty days in which to plead, and it was not in default until the expiration of that time. But the law gave only thirty days for that purpose, and this time was not extended by the erroneous recital contained in the summons.

“The defendant knew, when the summons wás served, that its time could not be shortened to twenty days, because the statute required a service of thirty days, but the defendant must also have known that the service would be complete after thirty days, because the statute so provides.”

The fact situation is identical, and the reasoning'appeals to us as soúhd. ' '

In Lockway v. Modern Woodmen of America, 116 Minn. 115, 133 N.W. 398, Ann. Cas. 1913A 555, a factual situation very similar to that existing in the Arkansas case just cited appeared. Here also the statute provided that no service upon a fraternal benefit association should be valid or binding when it was required to appear in less than thirty days after service.' The summons as served required’appearance in twenty days. The trial court refused to hold that the servicé was void, but permitted the plaintiff to amend it by changing the “20” to “30”, and, as so amendéd,' held it to be a valid service. This ruling was upheld by the Minnesota Supreme Court. To the same effect is Barker Co., v. Central West Inv. Co., 75 Neb. 43, 105 . Some attempt is made to ^distinguish these cases, because'in Minnesota and Nebraska actions are commenced through service of summonses, which issue from the court. But the Minnesota court has said,- in Flanery v. Kusha, 143. Minn. 308,. 309, 173 N.W. 652, 6 A. L. R. 838, that: “A summons- is not process, but merely a notice to defendant that an action against him has been commenced and that, judgment will be taken against him if he fails to answer.”, The same holding appears in Spokane Merchants Assn. v. Acord, 99 Wash. 674, 676, 170 P. 329, 330, 6 A. L. R. 835, and in Wagnitz v. Ritter, 31 Wash. 343, 71 P. 1085.

. The summons as used in the cited cases', and .as applicable to the cáse at bar serves the same purpose as óur original notice, and its amendment in the Minnesota and Nebraska courts was' a formality only] Permission to amend was, in effect, a holding that the' claimed defect in the summons was not jurisdictional. That this is so is shown by 50 Cl J.,.Process, section 357, page 605, where’ it is said: “The amendment need not always be actually made, for if the defect 'is" amendable. the writ may be deemed amended whenever the objection is taken * * And in the same volume, section 359, page 606, we find this:’ “An amendment of process will ordinarily be deemed to relate b,aek to the time of the commencement of the suit, validating’ail acts done under the process * *

See also 42 Am.’Jur., Process, section 20] page 21. Of course,' we have no such practice in Iowa .as the amendment of ' an original notice after service; the authorities set but in this paragraph are cited for ,the purpose of showing that ihe real’ holding of the courts which have permitted amendment of the summons is, in effect, that the defendant was given a valid and jurisdictional notice.

In an earlier case the North Carolina Supreme Court laid down the same rule.' The facts involved in Guion v. Melvin, 69 N. C. 242, 248, were closely comparable to the matter under consideration here. We quote from the court’s opinion:'

“We do not say that this deviation from the statute form is such an irregularity as will make the summons void, although it is always best and safest to follow- the form prescribed by the Code. But clearly the defendant cannot be abridged of any right by such an irregularity; he is not obliged to appear until the twentieth day after service, exclusive of the day of service, and any proceeding had before that day is null and void. We think the probate judge was not bound to dismiss the proceeding for the irregularity, but that he should have allowed the defendants the time allowed by the Code for an appearance.”

We agree with the reasoning and holding of the authorities cited above.

II. We have, in the preceding division, discussed the authorities in other jurisdictions, and have pointed out that the Iowa cases cited by appellee do not reach or determine the particular claimed defect before us upon this appeal. Strictly speaking, however, the case is not one of the first impression in this state, and we need go no further than our own Rules of Civil Procedure to make the proper decision. We have set out above rules 50 and 53, which are the applicable laws governing the situation as we have it here. Rule 53, as. set out, has this provision: “In all other eases [when the petition is not on file and a copy is not attached to the notice] the defendant shall appear within thirty days after the day such notice is served. Unless he so appears, he will ie in default * * (Italics supplied.)

In the case at bar the notice stated that the petition would be on file April 15,1950. The notice was served upon the defendant on April 12, 1950. The matter thereupon fell into the category of “all other cases” described in the final paragraph of rule 53. The defendant was entitled to thirty days to appear; but he was entitled to no more than that.

The fact that the notice as served upon defendant fixed twenty days instead of thirty for his appearance does not change the rule. The situation here is identical with that which arose under the statute which was in force in Iowa for many years (section 11059, Code of 1939) which provided that a defendant should be served with notice ten, or fifteen, or twenty days (depending upon his location) prior to the first day of the next term of court; but “If not so served, he shall be held to appear at the second term after service.” We had occasion to pass upon this part of the statute in Walters v. Blake, 100 Iowa 521, 522, 69 N.W. 879, 880:

“The defendants were not served in time for the December term of court, only nine clear days intervening between the service of the notice and the first day of such term. They question the jurisdiction of the court to enter default on this service at the following term. Section 2599 of the Code relates to the manner of beginning actions, and provides, among other things, that the notice shall name the term at which the defendant is required to appear. * * * The defendant, if served, within the county where the suit is brought, ten clear days before the first day of the next term, shall be held to appear at such term. ‘If not so served, he shall be held to appear at the second term after, service.’ The language of these sections is so plain that discussion tends to obscure, rather than to elucidate, its meaning. If notice is served before, but not in time for the term named therein, the defendant must appear at the next term thereafter, or judgment by default may be entered against him.”

Rule 53 supersedes Code section 11059. The conclusion seems inescapable that the effect of the italicized portion of the rule is identical with the quoted part of section 11059, both as set out above. Under the statute, if the defendant was notified to appear at a term certain, but without leaving the requisite number of days intervening between the service and the first day of the term, he must appear at the next term thereafter or suffer default. Under rule 53, if he is notified to appear within twenty days, but a copy of the petition is not attached and the petition is not on file, both the language and intent are plain that he must appear within thirty days. The rules are to be liberally construed for the purpose of promoting the speedy determination of litigation upon its merits; but we do not believe any construction is needed here. As we said in Walters v. Blake, supra, “The language * * * is so plain that discussion tends to obscure, rather than to elucidate its meaning.” However, that we have favored a liberal construction and interpretation, see Rhodes v. Oxley, 212 Iowa 1018, 1020, 235 N.W. 919, 920, where we said: “We have many cases dealing with the defects of original notices and have adopted a rule of considerable liberality in' sustaining the jurisdiction of-the court notwithstanding many defects in the original notice.” . .

The notice as served upon the defendant contained, printed upon its face, these words: “Note : If petition is neither filed nor copy attached, appearance date must be 30 days.” While not necessary to sustain the validity of the notice, this seems in itself tti foreclose any fair complaint by the defendant. He was fully advised that, if a copy of the petition was not attached (which was apparent) or the petition was not filed (which he could'.readily, and did, discover as his special' appearance shows), he thereupon had thirty days to' appear.

To sustain the spiecial appearance here would be to ignore the plain reading of the rules and to defeat'their manifest spirit and purpose. Such an ultratechnical holding, is not required éither by precedent or reason.- — Reversed and remanded.

Wennerstrum, C. J., and Smith, Bliss, Mantz, Garfield, and Hays, JJ., concur. - . . Mulroney and Oliver, JJ., dissent.